OPINION COLUMN: Tidings: Military justice or the Constitution?

Hardly a day goes by that we do not learn of another sex scandal among military professionals. The latest accused range from those of the highest ranks, Army Generals, to the apprentices just getting started at our service academies. Those law makers who have attempted to right this wrong by putting military crime under jurisdiction of civil law have been, so far, unsuccessful.

It is clear that our men and women in uniform need to be protected from those people who engage in improper or illegal sexual behavior. What is not clear is which system of justice, the law of the land as implemented by civil authority or the Uniform Code of Military Justice, should have jurisdiction in cases of sexual misconduct crimes.

The Uniform Code of Military Justice holds service members to a higher standard than civil law. Being absent from work for civilians, for example, may get you fired but it does not put you in jail. For service members, being absent from work for a short period of time can result in punishment metered out by a military commander who has the right to decide on "Non-Judicial Punishment." Being absent for thirty days or more can get you a Court Martial and a good deal of jail time. A civilian who engages in adulterous behavior may be sinning, but is not breaking the law. Adultery for military personnel is a punishable crime.

The ostensible reason for a Code of Military Justice that is more strict and less forgiving than civil law is the necessity for discipline and unit integrity called for by the very nature of the military's national security tasks. The Constitution invariably places the rights of the individual over the needs of the community. Our society, for example, might be better off if gun ownership were more tightly restricted, yet the right of the individual to bear arms is consistently upheld by those who interpret our Constitution. The Code of Military Justice, quite to the contrary, places the effectiveness of a military unit over the rights of the individual. The power of a person to disobey the order of a senior is surpassed by the requirement that unit personnel need to obey unquestioningly, need to march or to fight to the beat of the same leadership drum.

The notion that the military needs to deal with sexual misconduct in-house to maintain unit discipline and integrity is incorrect, even contradictory. As women take on increasingly front line roles, flying fighter aircraft and joining the crews of naval ships including submarines, the questions asked are, "Can men and women fight side by side?" and "In the close quarters of military life, particularly in combat and aboard ship, can the natural attraction between the sexes divert attention from the demanding tasks at hand?" We now know the answer to those questions. The answer is that men and women can and have fought and died side-by-side and continue to do so as long as men avoid the temptation to perceive of women exclusively as sex objects and as long as women avoid using their sexuality to influence the professional behavior of men. It is sexual misconduct that gets in the way of men and women working and fighting in close quarters. It does not take a rocket scientist to understand that sexual misconduct tends to destroy, rather than reenforce unit discipline ,cohesion and morale. This is painfully true when the trust and confidence that followers place in their leaders is destroyed as leaders get away with wrongdoing or passively permit bad behavior.

Of course, sexual misconduct is in violation of military law. However, even as leaders persist in maintaining the jurisdiction of the Uniform Code, commanders and military courts fail to enforce the spirt and the letter of the law.

It is a fact that sexual misconduct is in many cases looked upon by leaders with a friendly rather than a critical eye. Military leaders have a strong tendency to take care of their own and to protect their institutions from the stain of scandal. Moreover, senior officers tend to conform to the long standing cultural value that the warrior spirt justifies, even demands, lusty attitudes and behavior.

The recent decision to let General Sinclair get away with just about every sexual crime in the book and a military court's failure to significantly punish a Naval Academy midshipman for the felony of rape are examples that expose the rule rather than the exception.

The only way that we are going to remove the stain of sexual transgression from our military culture is to put at least this aspect military justice under the protective umbrella of our Constitution, to stop letting the fox guard the chicken coop.

Stephen Sloane, a Lake County resident, is a retired Naval Officer and a Professor at Saint Mary's College of California. He is a graduate of the Naval Academy and has earned a Ph.D. at the University of California, Berkeley. Reach him at 91671@gmail.com.